You are here: / / SUPREME COURT SHOULD HAVE GRANTED PLAINTIFF MORE TIME TO FILE PAPERS OPPOSING...

SUPREME COURT SHOULD HAVE GRANTED PLAINTIFF MORE TIME TO FILE PAPERS OPPOSING DEFENDANT’S MOTION TO DISMISS, PLAINTIFF DEMONSTRATED GOOD CAUSE FOR THE DELAY, THE LACK OF PREJUDICE AND MERITORIOUS DEFENSES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court should not have rejected plaintiff’s request for more time to file opposition papers. On the return date for the motion to dismiss, plaintiff tried to file a stipulation signed by defendant’s (NCAA’s) counsel which allowed plaintiff to adjourn the motion and granted plaintiff more time in which to file the papers. The court rejected the stipulation and marked the motion unopposed. That same evening, plaintiff e-filed the opposing papers:

​

CPLR 2004 provides that, “[e]xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.” In considering a motion for an extension of time, “the court may properly consider factors such as the length of the delay, whether the opposing party has been prejudiced by the delay, the reason given for the delay, whether the moving party was in default before seeking the extension, and, if so, the presence or absence of an affidavit of merit” … .

Here, the plaintiff established good cause for an extension of his time to submit opposition papers to the NCAA’s motion given the brief and unintentional delay, the lack of prejudice to the NCAA, the existence of potentially meritorious defenses to the NCAA’s motion, and “the policy favoring the resolution of cases on their merits” … . Calderone v Molloy Coll., 2017 NY Slip Op 05932, Second Dept 8-2-17

CIVIL PROCEDURE (CPLR 2004, SUPREME COURT SHOULD HAVE GRANTED PLAINTIFF MORE TIME TO FILE PAPERS OPPOSING DEFENDANT’S MOTION TO DISMISS, PLAINTIFF DEMONSTRATED GOOD CAUSE FOR THE DELAY, THE LACK OF PREJUDICE AND MERITORIOUS DEFENSES (SECOND DEPT))/CPLR 2004 (SUPREME COURT SHOULD HAVE GRANTED PLAINTIFF MORE TIME TO FILE PAPERS OPPOSING DEFENDANT’S MOTION TO DISMISS, PLAINTIFF DEMONSTRATED GOOD CAUSE FOR THE DELAY, THE LACK OF PREJUDICE AND MERITORIOUS DEFENSES (SECOND DEPT))

​

You might also like
General Permit for Municipal Storm Water Discharge Does Not Violate Federal or State Law
MEMBERSHIP IN LIMITED LIABILITY COMPANY CAN BE REACHED BY A JUDGMENT CREDITOR; CHARGING ORDER, RATHER THAN ASSIGNMENT OF THE MEMBERSHIP INTEREST TO THE CREDITOR, IS AN APPROPRIATE REMEDY.
Forum Selection Clause Requiring All Enforcement Actions to be Brought in Surrogate’s Court Enforced 
THE EXECUTIVE-ORDER COVID TOLLS APPLY TO THE SPEEDY TRIAL STATUTE, RENDERING THE INDICTMENT OF THE DEFENDANT TIMELY (SECOND DEPT).
DISCHARGE OF SWORN JUROR WITHOUT CONDUCTING AN APPROPRIATE INQUIRY AND WITHOUT SEEKING INPUT FROM COUNSEL WAS AN ABUSE OF DISCRETION, NEW TRIAL ORDERED.
FATHER’S NONVOLUNTARY UNION DUES SHOULD HAVE BEEN DEDUCTED FROM HIS INCOME FOR CALCULATION OF CHILD SUPPORT (SECOND DEPT).
BANK DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
MOTION TO VACATE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEFENDANT ATTORNEY COULD NOT ACT AS BOTH BROKER AND ATTORNEY IN THE SALE OF... DEFENDANT WAS NOT GIVEN THE OPPORTUNITY TO OBJECT TO THE PROCEDURE RE AN ALLEGED...